A History of Supreme Court Snark

Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar.

“It's gotten heated before—but never this personal or this public,” Sahil Kapur wrote in Talking Points Memo in the wake of the Court’s decision in Schuette v. BAMN, the Michigan affirmative action case decided by a bitterly split Court last week.

There’s no denying the drama of the dueling opinions in Schuette. Justice Sonya Sotomayor’s dissent parodied Chief Justice Roberts’s words in Parents Involved in Seattle Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Sotomayor implied that Roberts was willfully closing his eyes to reality. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,”she wrote. “[W]e ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

In a short, highly unusual concurrence (Kennedy’s plural opinion had already spoken on his behalf), the Chief did not discuss any point of law. His point was solely to complain about dissent. “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality,” Roberts wrote. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Direct? Yes. Bitter? You bet.

Worst ever? Not hardly.

Justices have been roughing each other up for years. Personal dislike? Consider that Justice John H. Clarke resigned from the Court in large part because he found Justice James C. McReynolds so odious. For his part, McReynolds would stand and leave the conference room when Justice Louis D. Brandeis began speaking, and would not pose for the Court’s formal portrait with Brandeis, because he was Jewish.

Passive aggression? Consider Justice Robert Jackson’s concurrence in the denial of rehearing in Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers, published in 1945. The original case, decided 5-4 a few weeks earlier, had concluded that the time unionized miners spent traveling in underground train cars to and from the coal face counted as “work” under the Fair Labor Standards Act, and thus had to be compensated by the mine owner. Justice Jackson had written the dissent, arguing that pay for “travel time” was actually covered under the contract signed by the union, and that the FLSA did not displace that. ...